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IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION AT COLUMBUS

RODNEY CONLEY, 

 Petitioner, : Case No. 2:11-cv-1142 

 - vs - District Judge James L. Graham 

 Magistrate Judge Michael R. Merz 

 Warden, Ross Correctional 

 Instutition, 

 Respondent. : 

REPORT AND RECOMMENDATIONS REGARDING APPEAL 

 This habeas corpus case is before the Court on Petitioner’s Motion for Certificate of 

Appeal (Doc. No. 32), received by the Clerk of the Sixth Circuit Court of Appeals on December 

2, 2013, and forwarded by her to the Clerk of this Court for filing, which also occurred on 

December 2, 2013. Similarly on December 16, 2013, the Clerk of the Court of Appeals received, 

and forwarded to the Clerk of this Court for filing, Petitioner’s Motion for Leave of Court to 

Proceed with Presentation of Delayed Notice of Appeal Shown Due to Extraordinary 

Circumstances (Doc. No. 33). 

 On September 5, 2013, District Judge Graham adopted the Report and Recommendations 

of Magistrate Judge Merz on the merits of this case, dismissing the Petition with prejudice, 

denying a certificate of appealability, and certifying that an appeal would not be taken in good 

faith (Doc. No. 30). Under Fed. R. App. P. 4(a)(1)(A), a notice of appeal was due to be filed not 

later than October 5, 2013. Under Fed. R. App. P. 4(a)(5)(A), this Court may grant an extension 

of time to appeal if a motion requesting that extension is filed “no later than 30 days after the 

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time prescribed by this Rule 4(a) expires; . . .” To take advantage of this provision, Conley 

would have had to file for extension in this Court not later than November 4, 2013. Under Fed. 

R. App. P. 4(a)(6), the Court can reopen time to file an appeal if it finds the moving party did not 

received notice, but the docket reflects mailing to Conley on September 5, 2013. 

 Thus Conley’s Notice of Appeal is untimely and this Court lacks any authority to extend 

his time. Moreover, this Court has already determined on the merits that a certificate of 

appealability should not issue and that any appeal would not be in objective good faith. 

Therefore the two pending Motions (Doc. Nos. 32 & 33) should be DENIED. 

December 20, 2013. 

 s/ Michael R. Merz

 United States Magistrate Judge 

NOTICE REGARDING OBJECTIONS 

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the 

proposed findings and recommendations within fourteen days after being served with this Report 

and Recommendations. Pursuant to Fed. R. Civ. P. 6(d), this period is extended to seventeen 

days because this Report is being served by one of the methods of service listed in Fed. R. Civ. 

P. 5(b)(2)(C), (D), (E), or (F). Such objections shall specify the portions of the Report objected 

to and shall be accompanied by a memorandum of law in support of the objections. If the Report 

and Recommendations are based in whole or in part upon matters occurring of record at an oral 

hearing, the objecting party shall promptly arrange for the transcription of the record, or such 

portions of it as all parties may agree upon or the Magistrate Judge deems sufficient, unless the 

assigned District Judge otherwise directs. A party may respond to another party=s objections 

within fourteen days after being served with a copy thereof. Failure to make objections in 

accordance with this procedure may forfeit rights on appeal. See United States v. Walters, 638 

F.2d 947, 949-50 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140, 153-55 (1985).

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